People v. Boyst

177 A.D.2d 962, 577 N.Y.S.2d 1007, 1991 N.Y. App. Div. LEXIS 15691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c]). Defendant’s sole contention is that the drawing and testing of a sample of her blood was not in compliance with 10 NYCRR 59.2 (c) (4), and that the results were therefore improperly received into evidence pursuant to Vehicle and Traffic Law § 1194 (4) (c) and § 1195 (1). Specifically, she contends that, because no anticoagulant was added to her blood sample, the subsequent clotting of that sample and testing of the serum (the unclotted liquid portion of the sample) rendered the results invalid and inadmissible. We disagree. The procedure that was followed is authorized by the regulations (see, 10 NYCRR 59.2 [a] [1]) and thus did not violate the statute. That regulation expressly permits the testing of blood serum, provided that, as was done here, a conversion factor of .9 is used to translate the serum alcohol reading into a blood alcohol reading. Consequently, the court did not err in admitting the test results. (Appeal from Judgment of Monroe County Court, Corning, J.—Felony Driving While Intoxicated.) Present—Callahan, A. P. J., Denman, Green, Pine and Davis, JJ.